Infosys, an Indian IT services company, has agreed to pay $1 million to settle an investigation by New York Attorney General Eric Schneiderman into its visa violations. Infosys failed to obtain the appropriate visa for foreign workers employed in New York. Infosys’ foreign workers held temporary B-1 visas instead of H-1B work permits. Visitor (B-1) visas are not subject to a cap and are much easier to obtain than H-1B visas.

The foreign nationals, holding B-1 visas, were not paid the prevailing wage that H-1B workers must be paid. Thus, New York stated Infosys owed taxes on the higher wages that should have been paid to Infosys employees and that its employees were in violation of their visa terms. Infosys stated the investigation centered on alleged paperwork errors and denied wrongdoing.

As readers may recall, in 2013, Infosys paid $34 million to the federal government to resolve allegations that it committed visa fraud and I-9 violations. The New York matter was an outgrowth of the same misdeeds of Infosys.

A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ordered Florida-based Government Training LLC, which provides training and publishing for government agencies, to pay back wages of about $48,000 to a nonimmigrant H-1B worker, Duneet Sharma, an Indian National, whom it underpaid. See Administrator, Wage and Hour Division v. Government Training, LLC, 2015-LCA-5 (DOL OALJ 2016).

Initially, the DOL issued findings that Government Training had violated the Immigration and Nationality Act (INA) by not paying Sharma either the actual wage or the prevailing wage specified in two LCAs. Thus, the DOL concluded that Sharma was owed back wages. The employer appealed the findings, sending the case to an ALJ. In October, the DOL filed for a summary decision, saying that the facts backing its initial findings were not in dispute.

Under the INA, employers who want to hire nonimmigrants to work in specialty occupations in the U.S. under the H-1B program must first obtain certification from the DOL by filing a labor condition application, or LCA, which sets the worker’s wage levels and working conditions. After getting an LCA as well as approval from the U.S. Department of Homeland Security, the H-1B nonimmigrant is issued a visa and may begin work.

Before the ALJ, Government Training sought the case to be dismissed and raised these issues: whether the employer was not liable for back wages due to lack of work, and whether Sharma was provided with a car, a cellphone and health insurance that should have been considered part of his wages.

The ALJ found that Government Training routinely underpaid Sharma, who was employed as a computer programmer from 2010 until 2013, from the amounts it had listed in its LCAs. The ALJ said the LCAs in Sharma’s case promised to pay him $65,000 per year for the position of software engineer, and set the prevailing wage at close to $56,000. The ALJ noted that Government Training admitted that it did not pay Sharma the required wages under the LCAs, and rejected the company’s arguments that it should be excused from not paying those required wages.

The ALJ also pointed out that although the health insurance, car and phone that Sharma received could be considered as benefits that are provided as compensation, Government Training didn’t submit any documentation to show how much those items cost or that they were ever reported on Sharma’s payroll or to the IRS as required; thus, the ALJ declined to find these benefits offset some of the back pay.